SPECIAL RAPPORTEUR ON TORTURE CONCLUDES VISIT TO TOGO

HR/07/63
18 April 2007

The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak, issued the following statement today:


"The Special Rapporteur was invited by the Government of Togo to undertake a visit to the country from 10 to 17 April 2007. He expresses his appreciation to the Government for the full cooperation it extended to him during the visit. He further expresses his gratitude to the Office of the High Commissioner for Human Rights in Lomé and the entire United Nations team for the excellent assistance prior to and throughout the mission.

The Special Rapporteur held meetings with the Prime Minister, the Minister for Foreign Affairs and African Integration, the Ministers of Human Rights and Democracy, Security, Justice, Social Action and Women’s Promotion, a representative of the Defense Ministry, the Attorney General, the President and several members of the National Human Rights Commission. He also met with non-governmental organizations and other civil society representatives. In addition, the Special Rapporteur held meetings with the International Committee of the Red Cross, the United Nations country team, including UNDP, UNHCR, UNREC, UNFPA and FAO, the diplomatic community and the European Union in Lomé.

The Special Rapporteur visited prison, gendarmerie, police and military detention facilities without prior announcement and was able to conduct private interviews with detainees. In Lomé, he visited the civil prison and the detention centre for minors, the headquarters of the Gendarmerie, of the Judicial Police and of the National Intelligence Agency. In Notsé he inspected the prison, and in Kara, he visited the prison, the Paratroopers’ Military Camp, the anti-gang brigade of the Gendarmerie and the Police Commissariat. In Pya, Anié, Sotouboua and Agbelouvé he inspected the Gendarmerie posts. In Sokodé he visited the Gendarmerie investigation unit, and in Tsevié the police post. He also met with the Prosecutors in Sokodé and Tsevié.

The Special Rapporteur welcomes Togo’s commitment to promoting respect for human rights, as illustrated by the fact that the overwhelming majority of his interlocutors indicated that the situation has improved considerably over the last year or so. State agents at all levels assured him that Togo has left its past behind and is now fully committed to respect human rights. He commends the efforts undertaken to improve prison conditions and to combat torture and ill-treatment in places of detention. However, he would like to stress that he witnessed several instances of severe beatings in prisons and police and gendarmerie custody and that he is concerned by the appalling material conditions in most places of detention.

Conditions of detention

Two of the three prisons that the Special Rapporteur visited are seriously overcrowded. In particular, in the civil prison of Lomé the population exceeds the capacity by far, which clearly has repercussions in terms of hygiene and security. Detainees sleep in overcrowded cells, sometimes in shifts. Access to food is restricted and mostly dependent on supplies from the family. The Special Rapporteur received numerous complaints about the quality and quantity of the food. Whereas in all prisons nurses provide day-to-day medical treatment, serious cases generally remain untreated if the detainee cannot provide the necessary funds. In Notsé prison the Special Rapporteur found an inmate in urgent need of hospitalization, which, according to the administrator, had not been arranged due to a lack of money.

In violation of international standards, there is no separation whatsoever between pre-trial and convicted prisoners. The vast majority of the prison population is held awaiting trial for lengthy periods. The Special Rapporteur considers that such an extensive recourse to pretrial detention is contrary to the principle of the presumption of innocence and to the exceptional rule of deprivation of liberty laid down by international law.

Conditions are generally even worse in police and gendarmerie custody facilities, where detainees sleep on the concrete floor in dark cells with little or no ventilation and minimum food and water. The fact that some detainees are allowed to use the toilet only once a day and that access to water for washing in some cases is extremely restricted exacerbates the situation. The Special Rapporteur was also informed by the gendarmerie about a special order aimed at preventing suicides, which some officials interpreted as requiring that inmates have to be naked day and night in their cells. Forcing inmates to be naked constitutes degrading treatment.

The poor conditions are of particular concern because in numerous cases witnessed by the Special Rapporteur the time limit for police and gendarmerie custody (48 hours) had expired and had not been extended by the prosecutor as required by the law, which means that many detainees spend prolonged periods in appalling conditions without any legal basis.

At the army camp in Kara, the general conditions of detention were much better. However, detention in the tiny cells (112x90 cm) that do exist would constitute inhuman treatment. Whether they were used or not could not be verified because the SR was prevented from entering them for a prolonged period upon his arrival at the camp. He also regrets that members of his delegation were prevented by insults and threats from ensuring that nobody interfered with the place of detention and the detainees.

Torture and ill-treatment

With regard to ill-treatment in prisons, the SR notes with satisfaction that the situation has certainly improved considerably since 2005 and that he has received only a limited number of allegations of ill-treatment and corporal punishment. However, he found allegations and evidence of several cases of beatings by guards and by other inmates, i.a. as a means of punishment. A major problem that the Special Rapporteur identified is the fact that in the prisons, authority is systematically delegated to what is often referred to as the “bureau interne”, i.e. to the hierarchy of prisoners, which necessarily leads to corruption and dependency of detainees on fellow prisoners.

With regard to torture and ill-treatment by the police and the gendarmerie, the Special Rapporteur notes a certain amount of progress. However, it would be wrong to say that cases of ill-treatment by gendarmerie and police officers are isolated. In most place of detention visited by the Special Rapporteur, he found evidence of ill-treatment. In most of these cases, detainees had been beaten by cordelettes or wooden sticks, primarily in order to extract confessions, sometimes for the purpose of intimidation or punishment. In some cases, gendarmes and police officers kicked detainees and/or pushed their hands, feet or faces down with their boots. Several sources reported that threats were used to intimidate detainees as well.

Women and Minors

With regard to women in detention, the Special Rapporteur notes that the conditions are generally better than in men’s prisons. However, he is very concerned about the fact that neither in prisons nor in police and gendarmerie custody facilities are there any female guards as required by international minimum standards. Concerning female genital mutilation, the Special Rapporteur welcomes the adoption of the 1998 law prohibiting female genital mutilation. However, he was informed only about one sentence under this law that goes back to the same year. He has also received reports that the practice and social acceptance of female genital mutilation persist, and that effective mechanisms to enforce the prohibitions are absent.

In the Special Rapporteur’s assessment, minors and children are at greater risk of corporal punishment and ill-treatment in detention situations. It is regrettable that in some cases minors were not separated from adults. At the juvenile detention centre in Lomé, corporal punishment appears to be routine practice. A special prison for children where abandoned, trafficked and marginalised children, some younger than ten, are held together with young adults who have committed crimes, clearly violates the basic principles of the Convention on the Rights of the Child.

Conclusions

On the basis of a thorough analysis of the legal system, his visits to detention facilities, interviews with detainees, the support of forensic medical evidence, and interviews with Government officials, lawyers and representatives of NGOs, the Special Rapporteur concludes that, notwithstanding many positive developments, beatings and similar forms of ill-treatment occur on a daily basis in the majority of detention places. In the view of the Special Rapporteur the major reasons are:

Impunity

The Special Rapporteur was assured by the Government that the process of criminalising torture, i.e. including the crime of torture in Togo’s Penal Code is under way. However, he would like to stress that this should be considered an absolute priority. He has consistently found that impunity is a key obstacle to eradicating torture. If torturers do not fear prosecution and conviction, the practice will continue.

The Special Rapporteur has not received a single case of anybody sentenced by a criminal court for having committed torture or ill-treatment in the past. He has not been informed of any functioning internal or external complaints mechanisms to which an alleged victim could have recourse, let alone one which the victims would trust. He notes that the National Human Rights Commission has been reformed and welcomes its commitment to become such a mechanism in the future.

Impunity is also of concern with regard to the events surrounding the 2005 elections, when torture was widespread as documented by several enquiries. The Special Rapporteur has not received any information that since then, any perpetrator has been brought to justice as recommended by the UN Special Envoy’s 2005 report and the report of the national enquiry commission. With regard to the up-coming elections, whereas he is hopeful that they will proceed peacefully, he encourages the Government to send a strong signal to all stakeholders that they will be held accountable for any act of violence in connection with the elections.

Deficiencies of the judicial system

Another major reason for concern is the fact that the judicial system is slow, inefficient and corrupt, which leads to a situation where many persons (approximately 75% of the detainees) are deprived of their liberty without conviction, sometimes for years, which exacerbates the overcrowding and all its corollaries. Whereas the Special Rapporteur appreciates that this is often due to a lack of means, he would like to stress that the lack of resources cannot be an excuse for human beings to spend several years in pre-trial detention, often only accused of petty crimes.

Lack of independent monitoring

Whereas the International Committee of the Red Cross and some non-governmental organisations have access to places of detention, no national independent monitoring mechanism is in place. The Special Rapporteur considers the ratification of the Optional Protocol to the UN Convention Against Torture, which foresees the establishment of an independent national commission entrusted with carrying out unannounced visits to all places of detention, a major step to prevent torture and ill-treatment in the future.

Staff and institutional dimension

Many problems in detention facilities, such as the lack of adequate food, health care, minimum standards of hygiene are aggravated by the chronic lack of resources. However, he insists that all officials have to be aware that, from the moment of depriving a person of his or her liberty, the State is fully responsible that the fundamental rights of this person are respected. It is therefore crucial to use the scarce means available for those who have been sentenced for committing grave crimes and constitute a real danger to society instead of locking up large numbers of persons in pre-trial detention. He would also like to stress that no Government official can delegate responsibility for preventing torture and ill-treatment to subordinates and non-state agents. In general, the Special Rapporteur found that most State agents he met were very open to reforms and changes.

He is concerned about the unclear division of responsibility between the police and gendarmerie and about the militarized character of law enforcement agencies in general, especially as regards the training and promotions. He is also concerned about the interference of the military in law enforcement activities and about the system of parallel responsibilities in prisons (the administrator on the one hand and the head of security on the other).

Preliminary Recommendations

The purpose of the visit was twofold: to assess the situation of torture and ill-treatment in the country, and to offer assistance to the Government in its efforts to improve the administration of justice, including the police/gendarmerie and prison sector. The invitation of the Government to the Special Rapporteur illustrates the willingness of Togo to open itself up to independent and objective scrutiny of its human rights situation. The Special Rapporteur commends the Government for the many positive steps taken in the recent past, which have led to a considerable improvement of the situation. These steps include the progressive implementation of the 22 undertakings with the European Union, of the UN’s mission of enquiry’s 2005 report and the Global Political Accord. At the same time, the Special Rapporteur recommends that the Government take further measures in order to fully implement its obligations under its constitution and international law. In particular, the Special Rapporteur recommends that the Government, together with the assistance of the international community, should:

· criminalize torture in full accordance with the definition contained in article 1 of the Convention against Torture, and impose appropriate penalties;
· fight impunity by establishing an effective and independent criminal investigation mechanism against perpetrators of torture;
· introduce accessible complaints mechanisms within places of detention;
· continue its efforts to improve the detention conditions;
· improve existing safeguards against torture by introducing effective habeas corpus rules, providing access to lawyers and independent medical examinations;
· ensure that existing safeguards such as the 48 hour time limit for police/gendarmerie custody are respected;
· strengthen alternatives to detention and imprisonment and render their use obligatory unless there are compelling reasons for detention;
· support the National Human Rights Commission in its endeavours to become an effective player in the fight against torture;
· ensure that pre-trial detainees have prompt access to the judiciary;
· introduce time limits on pre-trial detention;
· ensure the separation of pre-trial prisoners from convicts;
· establish effective mechanisms to enforce the prohibition of violence against women including traditional practices such as FGM, conduct a study to assess how wide-spread the practice is in Togo; continue awareness-raising campaigns;
· ratify the Optional Protocol to the Convention against Torture, and establish effective national mechanisms to carry out unannounced visits to all places of detention;
· clarify the status of the gendarmerie and define clear responsibilities for the gendarmerie and the police; establish clear chains of command in prisons;
· separate the military from internal law-enforcement functions;
· improve training for law-enforcement and penitentiary personnel and mainstream human rights into the curricula;
· with regard to the up-coming elections, all authorities and political parties should send the clear message that torture and ill-treatment are unacceptable; elections should be conducted without any participation of the military.

The Special Rapporteur also requests the international community to support the reforms of the judicial, law-enforcement and prison systems provided that the Government complies with the above recommendations.

He will submit a comprehensive written report on the visit to the United Nations Human Rights Council.

Mr. Nowak was appointed Special Rapporteur on 1 December 2004 by the United Nations Commission on Human Rights. As Special Rapporteur, he is independent from any government and serves in his individual capacity. The Commission first decided to appoint a special rapporteur to examine questions relevant to torture in 1985. The mandate, since assumed by the Human Rights Council, covers all countries, whether or not they have ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Mr. Nowak has previously served as member of the Working Group on Enforced and Involuntary Disappearances; the UN expert on missing persons in the former Yugoslavia; the UN expert on legal questions on enforced disappearances; and as a judge at the Human Rights Chamber for Bosnia and Herzegovina. He is Professor of Constitutional Law and Human Rights at the University of Vienna, and Director of the Ludwig Boltzmann Institute of Human Rights."


For further information on the mandate of the Special Rapporteur, please visit the website: http://www.ohchr.org/english/issues/torture/rapporteur/index.htm


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